Employment Trial Periods In Australia: Employer’s Legal Guide

Hiring is exciting - and a bit nerve‑wracking. A trial or probationary period gives you time to confirm that a new starter has the skills, attitude and values your business needs, without locking into a long‑term arrangement before you’re ready.

But probation doesn’t put you “outside the law”. Employees still have important rights during trial periods, and there are clear rules around notice, unfair dismissal, and entitlements. Get those right, and a probation period becomes a practical way to grow your team with confidence.

In this guide, we’ll explain what a probationary (trial) period is in Australia, how it interacts with unfair dismissal rules, what to put in your contracts, how to end employment lawfully if it’s not a match, and a simple step‑by‑step approach you can follow.

What Is A Probationary Or Trial Period?

A probationary (often called “trial”) period is a clearly defined timeframe at the start of employment where you and the employee assess fit - for the role and for your business. It’s most commonly three to six months, but it can be shorter or longer depending on the role and your needs.

During probation, you’ll typically evaluate performance, conduct, reliability, learning speed and cultural fit. The employee assesses whether the job and workplace are right for them. The arrangement should be set out in writing - usually in the employment contract - so expectations are clear from day one.

Important: Australian law doesn’t create a special “no‑rules” status for trial periods. Employees remain covered by the National Employment Standards (NES), applicable awards or enterprise agreements, anti‑discrimination laws and work health and safety duties throughout probation.

Paid vs unpaid “trial shifts”

Short, skills‑based trials used purely to demonstrate a candidate’s abilities may be unpaid in very limited circumstances, but most work trials must be paid. If the person is performing productive work, treat it as paid time. For more detail on what’s lawful, see guidance on trial shift pay and unpaid work trials.

How Do Trial Periods Work Under Australian Law?

The Fair Work Act 2009 (Cth) sets “minimum employment periods” that affect whether an employee can bring an unfair dismissal claim:

• 6 months for employers with 15 or more employees, and
• 12 months for small businesses with fewer than 15 employees.

If you end employment before the relevant minimum employment period, the employee generally can’t pursue an unfair dismissal claim (unless the dismissal is unlawful - for example, because it’s discriminatory or in response to the employee exercising a workplace right). Many employers align their probation period with these minimum periods for that reason.

What about casuals?

Casual employees can only access unfair dismissal if their employment is on a regular and systematic basis and they had a reasonable expectation of ongoing work. The minimum employment period still applies. Casuals also have different entitlements during probation (more on that below).

Small Business Fair Dismissal Code

For employers with fewer than 15 employees, the Small Business Fair Dismissal Code provides specific guidance about termination. If you follow the Code, it can provide a defence in unfair dismissal cases after the minimum period. It’s still best practice to set clear expectations, document performance concerns and provide reasonable feedback before making decisions.

How Long Should A Probation Period Be?

There’s no one‑size‑fits‑all rule. Choose a period that genuinely allows you to assess suitability for the role, and record the start and end dates in the contract.

• Three months: Often suitable for junior roles or roles with quickly demonstrable skills.
• Six months: Common for senior/complex roles and for employers aligning with the 6‑month minimum employment period.
• Up to 12 months (small business): You might align probation to the 12‑month minimum employment period if you have fewer than 15 employees. Only use longer probation where it’s reasonably necessary and ensure the terms are clearly drafted.

You can extend probation if your contract allows it and you notify the employee in writing before the original period ends. Build in a fair review process - for example, a mid‑point check‑in and a final review - so the employee knows where they stand.

What Should Your Employment Contract And Policies Include?

A well‑drafted agreement removes the guesswork. Your documents should set out exactly how the probation period works, plus the broader terms of employment.

• Employment Contract: Use an Employment Contract for permanent staff or an Employment Contract (Casual) for casuals. Include probation start/end dates, any extension option, review points, notice requirements and how termination is managed during probation.
• Role, Duties and KPIs: Outline responsibilities, reporting lines and performance measures you’ll assess during probation.
• Notice and Payment In Lieu: Set out how much notice is required during probation (noting the serious misconduct exception). If you reserve the right to provide payment in lieu of notice, state it clearly.
• Entitlements: Clarify entitlements during probation and distinguish between employment types. Permanent employees accrue paid annual leave and paid personal/carer’s leave from day one; casuals do not accrue paid leave, but receive a loading and still have certain NES entitlements (for example, compassionate leave and paid family and domestic violence leave).
• Policies: Refer to your policies - for example, a Workplace Policy or Staff Handbook - and make it clear they apply during probation. This helps you set standards for conduct, leave, performance management, and use of IT.

Payroll and super settings

Employees on probation must still be paid correctly, including superannuation and allowances where applicable. Understanding ordinary time earnings will help you calculate super accurately. Keep in mind your broader obligations (for example, PAYG withholding and Single Touch Payroll) - speak with your accountant for tax and payroll advice.

How Do You End Employment During A Trial Period?

If things aren’t working out, probation gives you more flexibility - but there are still rules to follow.

• Notice of termination (permanent employees): Permanent employees are entitled to minimum notice under the NES or any applicable award/enterprise agreement, even during probation. Your contract can provide for a longer notice period, but not less. If needed, you may provide payment instead of working notice where the contract allows.
• Serious misconduct: You may dismiss without notice for serious misconduct (for example, theft, fraud, or violence). Make sure you have a fair process, a clear basis for the decision, and keep records.
• Casual employees: Casuals typically don’t have NES notice entitlements. Check your contract and any applicable award - some require a short notice period or minimum engagement rules. Pay all amounts owed up to the end of the final shift.
• Lawful reasons only: You don’t need to provide a reason for ending employment during probation, but any decision must not be for unlawful reasons (such as discrimination, or because the employee exercised a workplace right).
• Unfair dismissal: In most cases, employees can only claim unfair dismissal after the minimum employment period (6 or 12 months). Keep in mind other claims (for example, general protections) can apply earlier if adverse action is alleged.
• Final pay: Pay all accrued entitlements and outstanding wages promptly. For permanent staff, this may include accrued annual leave and any agreed termination payments. For help with timelines and process, see termination during probation and employment notice periods.

Good documentation helps. Keep notes of performance conversations, any warnings or support provided, and how you communicated the decision. This reduces risk and demonstrates that your approach was reasonable and fair.

Step‑By‑Step: Running A Fair, Compliant Probation

1) Plan your probation settings

Decide the length, what success looks like and how you’ll assess it. Build a practical review schedule (for example, week 4 and week 10 in a 12‑week probation) and decide in advance what support or training will be provided.

2) Put it in writing

Issue a clear contract before the employee starts, including the probation clause, notice terms and relevant policies. Use the right agreement for the role - an Employment Contract for permanent employees and an Employment Contract (Casual) for casual staff. Confirm the start date and the exact probation end date.

3) Induct and set expectations

Explain the role, KPIs, policies and how probation works. Make sure the new starter knows when reviews will occur and how feedback will be shared. Encourage questions so there are no surprises.

4) Check in regularly and document

Hold brief, structured check‑ins. Capture what’s going well, any performance gaps, the support offered and agreed next steps. Confirm discussion points by email or in your HR system to create a clear record.

5) Decide with care (and communicate clearly)

As probation nears its end, decide whether to confirm employment, extend probation (if your contract allows and you have genuine reasons) or end employment with notice. Meet face‑to‑face where possible and follow up with a written outcome letter. If you’re ending employment, ensure the correct notice or payment in lieu is provided, and issue an accurate final pay.

6) Keep an eye on compliance

Throughout probation, continue meeting your obligations, including safe systems of work, fair rostering, correct pay and superannuation, and respectful, non‑discriminatory treatment. If you use short paid “trial shifts” at the start, make sure those comply with trial shift pay rules.

Probation FAQs

Do I have to include a probation period? No. It’s optional - but helpful to manage hiring risk and set a structured onboarding period.

Do probationary employees get leave? Permanent employees accrue paid annual leave and paid personal/carer’s leave from day one. Casuals do not accrue paid leave; instead they receive a casual loading and have access to certain NES entitlements (for example, compassionate leave and paid family and domestic violence leave).

Can I dismiss without notice during probation? For permanent employees, you must give at least the NES or award/EA minimum notice, unless it’s serious misconduct. Casuals generally don’t have NES notice entitlements, but check your contract and award.

Does probation protect me from unfair dismissal claims? Often, yes - if employment ends before the minimum 6‑ or 12‑month employment period (depending on business size), unfair dismissal is usually not available. Unlawful dismissal and general protections claims can still be made, so keep decisions lawful, fair and well‑documented.

Can I extend probation? Yes, if your contract allows it and you notify the employee in writing before the original end date. Make sure you have a genuine reason (for example, needing more time to assess performance due to changes in workload or training needs).

Key Takeaways

• A probationary or trial period is a defined window to assess role fit, but employees remain covered by Australian workplace laws throughout.
• Align probation with the Fair Work Act’s minimum employment periods (6 months, or 12 months for small business) to manage unfair dismissal risk.
• Use clear written terms: the right Employment Contract or Employment Contract (Casual), explicit probation dates, review points, notice settings and policy references.
• Permanent employees accrue paid leave from day one; casuals do not accrue paid leave but still have certain NES entitlements.
• Termination during probation still requires the correct process: notice (or payment in lieu) for permanent employees unless serious misconduct applies, lawful reasons only, and prompt final pay.
• Keep records, communicate early and often, and ensure pay, super and safety obligations are met during probation to minimise risk.

If you’d like a consultation on setting up employment trial periods - including tailored contracts, policies and a compliant process - you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no‑obligations chat.